Available online: https://edupediapublications.org/journals/index.php/IJR/ P a g e | 2037
Secularism-Under Constitution of India
Promila Kumari ,
B.Sc., LL.B., LL.M
Introduction:
India is a multi-religious country. It has embraced different religions and was known for its tolerance and mutual respect. As written by Pandit Jawaharlal Nehru in his most inspiring book. The Discovery of India,that "it was fascinating to find how the Bengalis, the Canarese, the Malayalis, theSindhis,the Punjabis, the Pathans,the Kashmiris, the Rajputs, and the great central block comparising of Hindustan-speaking people, had retained their particular characteristics for hundreds of years,with more or less the same virtues and failings, and yet they had been throughout these ages distinctively Indian, with the same national heritage and the same set of moral and mental qualities".1
It is this diversity of culture, religion, language, lifestyle etc. that unite as well as divide the country .This unity amidst diversity in the country is strengthened by its Constitution which declares. India as a' secular'nation.Secularism in India does not mean irreligion. It means respect
for all faiths and religions.The State does not identify itself with any religion.2 In this context, the
climate of rising intolerance as exists in the country today, poses a great question; whether secularism is a reality in India? As the world is increasing becoming more and more tolerable towards differences among people with globalization, India seems to lag behind or at least not move forward as far as tolerance and secularism are concerned.With a huge and diverse
population,it is indeed crucial for India to be a harmonious nation for people of all faiths.3Thus
the situation necessitates the need for a proper understanding of secularism as a Constitutional right and mandate.
Meaning of Secularism and Secular State:
The word 'secular 'means temporal or worldly or thing of the world and secular State means
Available online: https://edupediapublications.org/journals/index.php/IJR/ P a g e | 2038 spiritual or not ecclesiastical. It relates to the affairs of the present world. The separation of religion and State is the foundation of secularism. It ensures that religious groups don't interfere
in affairs of State,and makes sure the State doesn't interfere in religious affairs.5
It means, the State is not run on a religious basis and that there is no State-recognized church or religion. No one is disabled to hold any office on the ground of religion. There is only one electoral roll on which are borne the names of all qualified voters. 6The 'Sanskrit' word that is commonly used for “Secularism” in India is dharma nirapekshata and means “indifference
towards religion.”7 It is also understood as sarva dharma samabhaav meaning favouringall
religions equally. It means that the State will not allow discrimination between individuals and communities on religious grounds The State does not extend patronage to any particular religion, State is neither pro-particular religion nor anti-particular religion.It stands aloof, in other words maintains neutrality in matters of religion and provide equal protection to all religion subject to
regulation and actively acts on secular part.8
Further, the word 'secular' may mean that as far as the State is concerned, it does not support any religion out of public funds,nor does it penalise the profession and practice of any religion or the right to manage religious institutions as provided in Article 25 and 26.In free democracies it is a matter of free choice for an adult person whether to belong to a religion or not.He may not
believe in any religion, or he may change his religion.9
Secularism Under the Constitution of India:
Constitution of India declares India to be a secular nation. Though the concept of 'Secularism' was not expressely grafted while making the Constitution,its sweep,operation and visibility are
apparent from Fundamental Right and Directive Principles and their related provisions.10This
was not an inadvertent omission but a well calculated decision meant to avoid any misgiving that
India was to adopt any of the western notions of a secular state.11The concept of secularism as
Available online: https://edupediapublications.org/journals/index.php/IJR/ P a g e | 2039 that the State cannot aid one religion or give preference to one religion against another.Significantly,what was implicit in the Constitution was made explicit by the Constitution(Forty Second Amendment) Act,1976. The words 'socialist and secular'were added to the Preamble of the Constitution by the Constitutional Amendment to declare India to be a 'Sovereign, Socialist,Secular, and Democratic Republic'.The Statement of Objects and Reasons appended to the said Amendment states;
"It is, therefore proposed to amend the Constitution to spell out expressly the high ideals of Socialism and Secularism and the integrity of the nation."
The secular fabric of the Indian Constitution is so strongly woven with liberty of thought, expression,belief,faith and worship and fraternity among citizens as is evident in the Preamble to the Costitution. And thus the concept of 'socialism'and 'secularism'has been made explict and
India's commitment to these ideals has been further, underlined and
strengthened.12Further,secularism was upheld as a basic structure of the Constitution in
Kesavananda Bharati vs. State of kerala13 and the same veiw was reiterated by the Supreme
Court in S.R Bommai vs. Union of India.14
Constitutional Provisions Relating to Secularism:
The secular nature of the Constitution can be gathered from various Articles under Part111 of the Constitution in particular.State is enjoined to accord equal treatment to all religions under Articles 14-16 of the Constitution.
Articles 14 states that the State shall not deny to any person equality before law or equal protection of the laws within the territory of India.It means that State can't make a law favouring any particular religion.Articles 15 prohibits discrimination on ground of religion, race, caste, sex or place of birth. Article16 prohibits the State from discrimination between citizens in matters of public employment on the ground of religion.It provides that there shall be equality of opportunity for all citizens in the matter of employment or appointments under the State and no citizen shall on ground only of religion be ineligible for or discriminate against in respect of any
Available online: https://edupediapublications.org/journals/index.php/IJR/ P a g e | 2040 The freedom of religion is specifically guaranteed as a fundamental right under Articles 25 to 28 of the Constitution.Articles25 talks about the right of every person to profess, practice and
propagate his or her religion. 16The same however, is not an absolute right and is subject to
public order,morality and health etc.It makes it clear that religion is a matter of faith. A religion,undoubtedly, has its basis in a system of beliefs and doctrines which are regarded by those who profess that religion is as conducive to their spiritual well-being,but it is also something more than merely doctrine or belief. A religion may not only lay down a code of ethical rules for its followers to accept, but may also prescribe rituals and observances, ceremonies and modes of worship which are regarded as an integral part of that religion.These forms and observances might extend even to matters of food and dress. Therefore, the Constitution guarantee regarding freedom of religion contained in Article 25(1) extends even to rites and ceremonies associated with a religion. Freedom to manage religious affairs is guaranteed under Articles 26 of the Constitution.It provides for the following rights;
a) To establish and maintain institution for religious and charitable purpose; b) To manage its own affairs in matter of religion;
c)To own and acquire movable and immovable property and; d)To administer such property in accordance with law.
"Articles25 and26 embody the principle of religious toleration that has been the characteristic feature of Indian civilization from start of history.The instance and periods when this feature was absent, being merely temporary aberrations.Besides they serve to emphasize the secular nature of the Indian democracy which the founding fathers considered to be the very basis of the Constitution."17
Available online: https://edupediapublications.org/journals/index.php/IJR/ P a g e | 2041 homes,and hit heaven with their prayer",but throughout the ages men have worshipped in temple,churches,mosques and the like. In practice, personal right is inseparable from the institutional;and a person would justly complain that he had been denied the freedom of religion if the right of private worship was conceded, but the right of public worship was denied to
him.Articles 25 to 28 recognize this two-fold aspect of religion.18
The Constitutional schemes of secularism is further embodied under Article 44 of the Constitution in the Directive Principles of state Policy.As viewed by the Supreme Court in
Stanislaus vs.State of Madhya Pradesh19 the existence of Articles 44 which imposes an
obligation on the State to secure for the citizen a uniform civil code throughout the territory of India speaks in volumes of the secular character of the Constitution That the State had not initiated any positive measures for the realization of Article 44 of the Constitution does not make the Constitution anti-secular".
The above analysis of the Constitutional provisions relating to religion makes it clear that the Constitution guarantees equality in the matter of religion to all individuals and groups irrespective of their faith emphasizing that there is no religion of the State itself.The Preamble of the Constitution read in particular with Articles 25 to 28 emphasizes this aspect and indicates that it is in this manner the concept of secularism embodied in the Constitutional schemes as a creed adopted by the people has to be understood while examining the Constitutional validity of
any Legislation on the touchstone of the Constitution .20
Judicial Interpretations on Secularism:
The principles established by the Indian Judiciary clearly hold religion as a matter of faith.The Indian Conatitution as well as subsequent intervention of the Supreme Court have tried to ensure
that religious organisation and groups are not discriminated against in the public domain.21As
held by Justice K.Ramaswamy in S.R Bommai's case, "the concept of secular state is,
therefore essential, for the successful working of the democratic form of Government."22 The
following case laws futher strengthen secularism as a Constitutional right;
Available online: https://edupediapublications.org/journals/index.php/IJR/ P a g e | 2042 The Court held that Secularism is one of the basic features of the constitution.Secularism is a positive concept of equal treatment of all religions.This attitude is described by some as one of neutrality towards religion or as one of benevolent neutrality.While freedom of religion is guaranteed to all persons in Indian,from the point of view of the State,the religion, faith or belief of a person is immaterial .To the State, all are equal and are entitled to be treated equally. In matters of State, religion has no place. And if the Constitution requires the State to be secular in thought and action, the same requirement attaches to political parties as well.The Constitution does not recognize, it does not permit, mixing religion and State power. Both must be kept apart. That is the Constitutional injuction. None can say otherwise so long as this Constitution governs
this country. Politics and religion cannot be mixed23.
Ahemedabad St.Xaviers College Society vs.State of Gujarat :
24"The Constitution has not erected a rigid wall of separation between the Church and the State.It is only in a qualified sense that India can be said to be a secular State.There are provision in the constitutions which make one hesitate to characterise our State as secular. Secularism in the context of our Constitution means only an attitude of live and let live developing into the attitude of live and let live."
Ismail Faruqi vs.Union of India :
25The right to profess, practise and propagate religion does not extend to the right of worship at any or every place of worship so that any hindrance to worship at a particular place per se will infringe religious freedom.
Bijoe Emmanuel vs.State of Kerala :
26
Available online: https://edupediapublications.org/journals/index.php/IJR/ P a g e | 2043 conscience and to profess, practice and propagate religion is invoked , the act complained of as offending the Fundamental Right must be examined to discover whether such act is to protect public order, morality and health,whether it is to giveneffect to the other provision of part111 of the Constitution or whether it is authorized by a law made to regulate or restrict any economic, fiancial political or secular activity which may be associated with religious practice or to provide for social welfare and reform.
T.M.A PaiFoundation & Ors vs.State of Karnataka & Ors :
27The essence of secularism in India was best depicted by the court in this case in the following words;
"The essence of secularism in India can best be depicted if a relief map of India is made in mosaic, where the aforesaid one billion people are the small pieces of marable that go into the making of a map. Each person, whatever his /her language,caste, religion has his/her individual identity,which has to be preserved,so that when pieced together it goes to form a depiction with the different geographical features of India.These small pieces of marble, in the form of human beings, which may individually be dissimilar to each other,when placed together in a systematic manner,produce the beautiful map of India .Each piece, like a citizen of India,play an important part in making of the whole."
Theare few important themes that emerge from the Court's description of secularism:first the idea that the religion can be neatly separated from the secular and that religion must be kept apart from the affairs of the State;second the notion of religion as it 'ought to be' in contrast to the actual practice of religion;and third secularism as an essential component of democracy as well
as of national unity and integration.28
Conclusion:
Available online: https://edupediapublications.org/journals/index.php/IJR/ P a g e | 2044 safegurded at any cost amidst the growing fundamentalism and scary mood of tolerance rising up in the country."It may be said that 'fundamentalism and pluralism pose the two challenge that people of all religious traditions face; and "to the fundamentalists,the borders of religious certainty are tightly guarded; to the pluralist, the borders are good fences where one meets the neighbor; To many fundamentalists, secularism,seen as the denial of religious claims,is the enemy; to pluralists, secularism , seen as the separation of government from the domination of a single religion, is the essential concomitant of religious diversity and the protection of religious
freedom.29
END NOTES:
1) http://www.sacw.net/article9565.html.
2) M.P Jain,Indian Constitutional Law, 4th edn,Wadhaw &Company. 3)http:// shubharathi.blogspot.in/2011/10/secularism-in india.html. 4)Concise Law Dictionary,3rd edn, 2011.
5)http://www.secularism.org.uk/what-is -secularism.html. 6)Supra note 2.
7)Supra note 3.
8)Ismail Faruqi vs Unoin of India(1994) 6 SCC 360
9)H.M Seervai Constitutional Law of India,4th edn, Vol.2,Universal Book Traders. 10)Supra note 8.
11http://shodhganga.inflibnet.ac.in/bitstream/10603/1936/8/08/_chapter%203.pdf. 12)Supra note 2.
Available online: https://edupediapublications.org/journals/index.php/IJR/ P a g e | 2045 14)(1994) 2 SCR 644.
15)Supra note 11. 16)Supra note 2.
17)SardarSyedna Taher Saifuddin vs The State Of Bombay,1962AIR853referred in http://www.ebc-india.com/lawyer/articles/9807 a 1 .html.
18)Supra note 9. 19)AIR 1977 SC 908. 20)Supra note 8.
21)http://www.eastwestcenter.org/fileadmin/stored/pdfs/PSO30.pdf. 22)Supra note 21.
23)http://www.legalserviceindia.com/article/1324-S-R-Bommai-v- Unoin of- India.html. 24)1974 AIR1389.
